Opinion
No. 107,230.
2012-07-27
STATE of Kansas, Appellee, v. John L. WHITE, Jr., Appellant.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.
Submitted for summary disposition pursuant to K.S.A. 21–4721(g) and (h).
Before GREENE, C.J., STRANDRIGE and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
John L. White, Jr. appeals the district court's revocation of his probation and the court's order to serve his underlying sentence. We granted White's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). Concluding there was no abuse of discretion, we affirm the district court.
In August 2010, White was placed on probation after he pled guilty to two counts of cultivation and distribution of controlled substances, one count of no tax stamp, and one count of criminal possession of a firearm, with an underlying sentence of 23 months' imprisonment. The district court cautioned White at sentencing that if he violated his probation, the court would revoke his probation and impose the underlying sentence.
On April 1, 2011, White stipulated to violating certain conditions of his probation. The district court revoked and reinstated his probation, with the additional condition that White would wear a GPS tracking device for monitoring. Although the court had informed White that White's probation was zero tolerance, the court did not want to place White in prison. White was cautioned that if he violated his probation again, he would be placed in prison.
On June 22, 2011, White again stipulated to violating conditions of his probation, specifically letting his GPS tracking device go dead on two occasions due to failure to charge the unit. White's counsel asked the court to reinstate White's probation based on the nature of the violation. Counsel argued that the GPS failure had been an “inadvertent mistake;” White was in between taking classes and caring for his children and the GPS lost its charge. After hearing from counsel, from White, and from the State, the court determined that White's probation should be revoked, and he was ordered to serve his underlying sentence of 23 months' imprisonment.
White filed a motion for reconsideration, arguing that the probation violation was minor and asking the court to hear testimony from his wife regarding the facts and circumstances leading to the violation. After hearing arguments from White's counsel and allowing into evidence a letter written by White's wife, the district court stated that it would not hear any more evidence and denied reconsideration of the revocation.
White appeals the probation revocation and imposition of his underlying sentence, claiming the district court abused its discretion in revoking his probation. The motion argues only that “the district court abused its discretion by revoking probation.”
Probation from service of a sentence is an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege, not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proven a violation of the conditions of probation, probation revocation is within the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
White clearly stipulated to violating conditions of his probation, specifically, twice allowing his GPS tracking device to go dead by failing to charge it after being warned of the consequences of any further probation violations. White told the court that he did not feel like he got “the opportunity as far as on [ sic ] probation,” stated that he kept in contact with his probation officer, and noted that he did not “know if it's something there or what's the case.” The district court, however, stated:
“Apparently we're not—just not able to tailor this probation to fit your needs apparently. I always thought it was the other way around. I thought ... when somebody was on probation they were supposed to comply with our terms and conditions. But apparently with you we're always trying to make exceptions and adjustments and I don't quite understand that.”
Having carefully reviewed the record of proceedings in district court, we conclude that there was not any indication of arbitrary or unreasonable judicial action in revoking White's probation, and we thus decline to conclude there was any abuse of discretion in the district court's actions.
Affirmed.